A new twist on Higbee

[DrumGuy23]

The first part of my story is much like the others in the Higbee forum: a letter showed up claiming infringement, demanding money, had the offending photo, etc. I have a website whose theme is drumming, and I occasionally include other interesting things. About a year ago I had a paramedic tell me about a simple home remedy for a poisonous plant, and I shared that with web visitors. I found what I thought was a public domain photo of a poisonous plant online, and included it as an illustration.

The letter sounded like a scam to me, so I tossed it. As a composing musician, copyright is important to me, so I immediately deleted the photo from my server just as a courtesy. It had nothing to do with the theme of the website, and was basically unnecessary and unimportant. It was very small, 200 x 150, but the image was stored on my server at the time.

And now for the twist. The other interesting thing was that none of the letters were addressed to me - they were addressed to the nickname of my studio, "xxxx".

Multiple letters continued to arrive, I tossed them without reading, continuing to assume it was a scam. If it were a serious legal issue, I assumed that they would have been sent by registered mail so that it could be proven in a court of law that they had been received by the correct person.

Next I got a letter from Higbee & Asso saying that they were representing the copyright holder and that if they don't receive $1000 from me in two weeks, they were going to sue. Lots of scary language. Really scary language - but you're already familiar with that from this forum.

Points:

1) In looking up copyright law, I found a site saying that the first order of business in a copyright case is for the plaintiff to issue a cease and desist order. That never happened. Their first contact was with a letter that was sent presorted first class demanding money, which I merely scanned. I don't know if the cease & desist info is correct, but one didn't come.

2) They have never sent a letter to me by my name or any legal entity (a person, a company, etc). For example, if the name of my website was "xxxx," which was the nickname of my studio, then every letter has come to "xxxx" which is not a legal entity - there's no person, corporation, company, LLC, DBA, etc under that name. At least, connected to me; there are probably legal "xxxx" names being used in the country. The Higbee letter begins, "Dear xxxx." No entity under that name has a bank account or is officially registered anywhere - it's simply a nickname that everyone uses casually, not legally.

3) In addition to all this, I believe that I can claim fair use for a few reasons: a) the photo was used to educate - to pass on information about a home remedy for people who had been exposed to this plant; b) no money was made - it is a free site, it costs nothing to view, and in reading the text with the photo, the visitor learned a first aid tip... it was therefore purely educational; c) the use of the photo had nothing at all to do with the overall theme of the website, which is drumming.

I don't know what to do. I don't want to go to court, but based on what I've said, the twist to this is that they'd be suing a non-legal entity. No legal person or entity has even been notified of the supposed copyright infringement.

Any thoughts on this would be greatly and sincerely appreciated - thanks.

[DrumGuy23]

I should probably mention that the extortion letter showed the alleged infringing photograph and a thumbnail of the page it was on, but there was no mention of the copyright registration information or who owned it, no proof that the photograph was indeed copyrighted, just an opening statement that it the firm was representing PicRights Ltd.

[DrumGuy23]

In doing a Google image search online, the particular "infringed" image has been used (according to Google) 25,270,000,000 times, and I have yet to find it attributed. It seems that the alleged "copyright holder" isn't defending the copyright very well, if at all... some of them go back a long time. I also found the image listed on at least a couple of public domain image sights. I realize that none of this absolves me from the claim of copyright infringement, but I know that in the case of a trademark if you don't aggressively defend it, you will lose it by default.

[DrumGuy23]

After consulting a "lawyer acquaintance downtown" (to borrow from "A Streetcar Named Desire" and "The Goodbye Girl"):
1) I need to ask Higbee to produce the copyright registration certificate (I don't think that they can sue without it)
2) I need to ask for documentation show that they are pursuing the hundreds (if not thousands) of other websites using that image. If they aren't aggressively defending it, then the copyright can be considered legally "abandoned."

[kingkendall]

@DrumGuy23

I suggest you edit your original post and remove reference to the nick name of your website.  There's no need to put that out there.  Second, I would strongly suggest not following the advice of your lawyer acquaintance at this time and enter in communications with Higbee.  Not that the advice isn't legit but it's for a latter time if a suit was actually filed against you.  Keep a file on what Higbee sends you and go on living your life like you were doing before.  In the meantime read this forum and learn from others who have dealt with this.  You are one of thousands if not more dealing with this scam.  You were on the right track all along.   

[DrumGuy23]

Thanks for the post and the kind words. Greatly appreciated. I don't know about living life like I was before - this thing has been eating me up with worry and stress. I have a screen capture of the free stock photo site that actually says all images are in public domain, including the one I received the letter about. I realize that doesn't mean anything at all, but it does at least give me a clear conscious that I was acting in good faith and didn't just knowingly just steal someone's photo. Still, I feel like the school bully is waiting for me out on the playground to beat me up and there's nothing I can do about it.

[Robert Krausankas (BuddhaPi)]

a. don't communicate with Higbee, he's a douche bag
b. a cease and desist is NOT required
c. Higbee doesn't know your name, hence the letters addressed to "xxxx", he can't file a suit if he doesn't know you name.
d. see "a" above
e. keep the screen shot of the image site stating it's in the public domain, it shows you used the image in good faith, which would help your case IF it went to court.....it won't
f. the # of times the image has been used doesn't mean much in the grand scheme of everything, tho it could help your case that the owner has no control off his /her copyright..
g. again refer toooo "a" above

[kingkendall]

I don't know about living life like I was before - this thing has been eating me up with worry and stress. 

That's exactly the way Higbee wants you to feel.  I totally understand.  But this to will pass as the days go by.  Courage and strength comes with knowledge. 

[DrumGuy23]

Thank you SO much to everyone on the forum. Great support and info, and extortionletterinfo.com ROCKS!

[DrumGuy23]

Today I made an appointment with an attorney for a legal consultation. I brought in all materials, including the screen shots on the "public domain" site and on a Pinterest stock photo page. He read the Higbee letter, examined everything that I’d brought, and told me two things (both of which have been said a number of times on this site already):

1) It is a scam. His opinion was that if Higbee wanted to make money off taking lawsuits into a courtroom, he'd be finding a way to sue drug companies, insurance companies, national million-dollar corporations, etc. He pointed out that Higbee would probably go broke if he was chasing ordinary people with a website for a few thousand bucks a trial. He feels that Higbee is simply casting a wide net, and if only a small percentage of the people bite, he’s still making a fortune without spending a lot of money.

2) (as Robert said in a previous post) Never, ever, ever talk to Higbee and Asso. Not by mail, not by email, not by phone. If he does actually sue, then he said only my attorney should speak to him.

He said that this operation is only a step above the email that you receive from a Nigerian prince who needs help bringing a million dollars into the country. He’s actually had people come into his office who fell for that one, by the way.

Anyway, I’m not an attorney, so don’t take this as iron-clad advice, but it rang true to me. Again, I appreciate everyone on this site. Thanks.

[DrumGuy23]

Forgot to mention... my attorney also told me that in my state, damages from a lawsuit can't touch my house, my car, and $30,000 in assets - they have to go after anything beyond that. I live an extremely happy and satisfying life, but I fit into the category of starving artist, living kind of gig to gig. Given the above parameters, IF Higbee sued, I don't know what he could possibly get.

Do you think that he does any research about a client before filing a lawsuit against them in a state different from his, where he'd start bleeding money from the time that he hired a process server?

[Greg Troy (KeepFighting)]

Do you think that he does any research about a client before filing a lawsuit against them in a state different from his, where he'd start bleeding money from the time that he hired a process server?

No, these operations send out as many letters as they can and see who they can scare into sending money.  The ones who respond get more attention because they know the person/business is concerned enough to engage them.  They have standard boilerplate answers to all the same questions and statements they receive that they just copy and paste into their reply and turn up the scary language. I would just ignore them and follow Robert's advice.

[elinewbie]

I read this forum after I received my first letter from these scumbags. I took the advice and went silent. After scare tactics like template lawsuits and many weekly calls and voicemail I haven't heard anything In a long time. Don't be that low hanging fruit.

[kingkendall]

I strongly suggest deleting your contact info at the bottom of your post. 

[Matthew Chan]

There is something you can do about it. You can negotiate and settle it.

I don't know your lawyer but I find many lawyers to be very uninformed in the arena that we cover on ELI. However, your lawyer's opinions are largely on the mark. But ultimately, YOU have to live with it. It comes down to your personality and risk tolerance.

Another thing.... EVERYONE pays when going through this BS.  Everyone gets to choose HOW they pay it. Some "pay" by toughing it out the 3 years. It is inexpensive monetarily but has some collateral effects as indicated by your stress. Others prefer to give up some money, for the peace of mind and closure.

People seem to think having more money and assets helps them in these cases. Actually, having more money and assets makes you more vulnerable to lawsuits.  People don't file lawsuits against broke people. There is nothing to collect.

You claim you can't do anything about it. That isn't true. You can. There is PLENTY you can do. You just may don't like what you have to do.

Even the choice of sitting in a dark corner is an option. You just have to be prepared to accept the direct and indirect consequences.

I don't know about living life like I was before - this thing has been eating me up with worry and stress.

Still, I feel like the school bully is waiting for me out on the playground to beat me up and there's nothing I can do about it.